Child Custody

Many unhappily married spouses believe they have an obligation to “ride out” the bad marriage for the sake of their children. In many cases, doing so causes more harm to the children than good. Spouses in this situation should understand that North Carolina’s child custody laws exist to promote the best interests of their children, and that properly structured, a child custody arrangement between separated parents may better promote their children’s long-term welfare than being trapped under one roof with warring parents.

Child custody arrangements vary tremendously depending on the circumstances of the parents and children. Typically the parents live in two separate homes with the children spending “custodial time” in each home (with clothing and possessions in each) with joint decision-making authority over educational, religious, health, extracurricular, and other activities in which the children participate. In rare situations, where one parent is deemed “unfit” because of domestic violence, dependence on alcohol or drugs, mental instability, or other deficits which prevent him or her from being an effective parent, sole custody may be granted to one parent or the other, with the other parent having only visitation rights and no right to make decisions on behalf of the children. In this day and age, sole custody is the exception, not the norm.

Though many years ago a preference existed in the law for custody of young children to be placed primarily with their mother, that preference no longer exists. If anything, most judges now have a preference for custody to be divided equally, 50/50, all other things being equal. This preference is based on the notion that children develop best when they have equal doses of both parents in their lives. But even a 50/50 custody arrangement can have many variations, such as week-on/week off, every Monday and Tuesday with one parent, every Wednesday and Thursday with the other, with alternating weekends, and even splitting up children to have one-on-one time with each parent. There is no “one-size-fits-all” solution to child custody. The best arrangement takes into account each parent’s employment situation, the age of the children, where the parents live, and where the children attend school, religious institutions, and extracurricular activities. Virtually all custody agreements also address where the children will be on holidays, summer vacations, and during their and the parents’ birthdays. Typically children are placed with one parent for Thanksgiving and the other for Christmas, rotating those holidays every other year.

There are three types of custody recognized in North Carolina: emergency custody, temporary custody, and permanent custody. Emergency custody may be obtained if one parent alleges that there is a physical danger to the children presented by the other parent or that there is a substantial risk of the other parent absconding with the children – emergency custody results in sole custody being granted to one parent. When an order of emergency custody is entered, it typically lasts for less than two weeks, at which time a hearing will occur to determine whether there are sufficient grounds to continue such a sole custody arrangement. Temporary custody is the custody arrangement that exists until a permanent custody arrangement is either agreed upon or determined by the court. In many counties, including Wake County, it can take a considerable length of time until a permanent custody hearing is scheduled. For that reason, a hearing on temporary custody is typically scheduled within a few weeks of when a custody case is filed. A hearing on temporary custody is a limited hearing, typically limited to two hours in length.

All parents involved in custody litigation must attend a mandatory mediation with a trained mediator employed by the Court. The goal of these mediation sessions is to reach a “Parenting Agreement” which establishes a custody schedule that may be signed by the judge as a court order. Attorneys are not permitted to attend these mediation sessions. There is no requirement that a parent reach an agreement with the other parent. An agreement may be reached at a later time. And in some situations, it is simply not possible to reach an agreement. When that happens, the Court will hold a formal custody hearing, with both parents – and often other witnesses – providing testimony regarding each parent’s fitness. Minor children do not testify at child custody hearings and generally do not have a role in the process. In fact, parents who are adversaries in child custody litigation best promote their children’s welfare by shielding their children from all aspects of the process. As odd as it may seem, children should not become personally involved in child custody litigation.

In high-conflict child custody situations, a Parent Coordinator may be appointed by the Court to help the parents make decisions about the children and to assist the Court in ensuring that the letter and spirit of the child custody order is being carried out. Though there is a cost associated with a Parenting Coordinator, that cost often pales in comparison to the cost of fighting in court every time there is a disagreement over vacation schedules, extracurricular activities, and the schools they will attend.

Even where a child custody order exists and has been in force for a long time, it is possible for one parent to move to modify it to change the custody arrangement or the level of decision-making authority each parent has. Though the legal standard is very high to change the terms of a child custody order, a judge has discretion to do so where the circumstances of the parties’ situation has changed substantially, such as when one parent moves a substantial distance away from the other or when a previously well-functioning parent begins to battle addiction or mental illness. Just as a judge has considerable discretion in initially setting the terms and conditions of child custody, he or she has considerable discretion in deciding whether to modify those terms.